20 November 2015

Chairperson: Ms M Semenya (ANC)

Meeting Summary

The Committee with the help of the parliamentary legal team and the state law advisors, read through each clause of the Performing Animals Protection Bill before adopting them.

Members raised the following queries/comments: qualifications necessary for a National Licensing Officer; ‘Reasonable opportunity’ was not specified in the Bill which may lead to subjectivity; the appellant not specifically given the opportunity to ring expert witnesses

The Bill was adopted with the EFF objecting to the Bill.

The Ministry had invited the Committee to forward nominations for the National Agricultural Marketing Council as its tenure would lapse. The Marketing of Agricultural Products Amendment Act of 2001 had amended the key role that the Portfolio Committee played in the nomination process, to that of a subsidiary role. Members discussed whether it was even worthwhile for the Committee to participate in this process. Some suggested that the Committee should be responsible for nominating at least three or four of the council members.

However, the EFF was against this and said that those that were pushing for favours for applicants coming through the Committee were to be criticised. There was a process to make sure that everyone was treated fairly. The Committee should never favour any applicant – that bred corruption. It did not matter who invited that applicant, they would still all go through the same process.

The CVs of nominations would be considered first thing in the New Year. The Act that placed this subsidiary duty on the Committee was going to be scrutinised in the New Year, and the Committee would propose amending this nomination process.

Meeting report

The Chairperson apologised for holding the meeting on a Friday but it was the only available time as everyone had been affected by the strike. The Committee needed to finalise the Bill so that it could be tabled in the House on 24 November. The Committee would go through the Bill and adopt it clause by clause.

Ms Phumelele Ngema, Parliamentary Law Advisor, took the Committee through the Portfolio Committee Amendments to the Bill (the A list or B9A-2015) and approved these first.

Ms Yolande Van Aswegen, Principal State Law Advisor, took the Committee through the B version of the Bill which incorporated all the Portfolio Committee Amendments.

The Long Title, Clauses 1 and 2 were read through.

Mr M Filtane (UDM) said that listening to the qualifications of the person who is able to be a National Licensing Officer, they had to be a vet. He had been looking for definitions in the Act. He was aware that he had missed a few meetings. But regarding a situation where a person came to South Africa from Egypt and said they were a vet, he wanted to know where the definitions were in the Act that would assist there.

Ms Ngema explained that because this was an Amendment Bill to an existing Act, it was drafted showing only the specific sections that were being amended. However, in the principal Act of 1935, the definitions were found under section 11, which were shown in clause 8 of the Bill. All those that the Committee had suggested should be amended were found in clause 8 of the Bill.

Clause 3 Insertion of sections 3A to 3P in Act 24 of 1935
Mr Filtane pointed to the National Licensing Officer being able to suspend a licence if after a person had been afforded a "reasonable opportunity" to rectify the non-compliance in section 3L(1)(b). He felt "reasonable opportunity" could be a very subjective interpretation. He asked if it was too late for the Committee to decide on what a reasonable period was. South African law generally looked at 14-30 days as being reasonable. He wanted the legal team to advise if there was any ambiguity.

The Chairperson stated that the length of the "reasonable" time is usually stipulated in the regulations to the Act. Parliament was not going to be implementing the Act. The Minister specified this in the regulations as the Executive implemented the legislation.

Ms Ngema agreed with the Chairperson. Some of the intricacies of cases could only be ascertained once the case is before you. Hence when one said reasonable time, generally speaking there were certain periods of time accepted in law. Whereas if time frames were specified in the Bill, it may cause difficulty for those people implementing the Act, and then to comply with such stipulations would be difficult in those circumstances.

Mr Filtane referred to principles of justice and fairness not being present in section 3O(5) where it states: "A person who appeals in terms of section 3M and the National Licensing Officer may be represented". In the previous subsection 3O(4), there is a provision for the National Licensing Officer to call an expert witness:

Investigation and consideration by Board
3O. (1) The Minister may refer an appeal to the Board.
(2) An appeal must be heard on the date, time and place determined by the chairperson.
(3) The chairperson must inform the appellant and any other party that has an interest in the appeal in writing of the date, time and place of the hearing.
(4) The chairperson may, for the purposes of the hearing of an appeal—
(a) summon any person who may have material information concerning the subject of the hearing or who has in his or her possession or custody or under his or her control any document which has any bearing upon the subject of the hearing, to appear before the Board at a date, time and place specified in the summons, to be questioned or to produce that document, and the chairperson may retain for examination any document so produced; and
(b) administer an oath to or accept an affirmation from any person called as a witness at the hearing.
(5) A person who appeals in terms of section 3M and the National Licensing Officer may be represented.

However, the appellant is not given an opportunity to bring in an expert witness, only to be "represented". He argued that representation was different to having additional witnesses to lead evidence in your favour. Such persons may want to bring in their own witnesses to improve their case.

Ms Ngema replied that it was generally accepted that where a person is tried and is aggrieved with the decision, in terms of the principles of justice and fairness, a person who had to undergo such a process, is given a fair process. So it would be a given that the person could bring along a witness, as long as he made an application to the chairperson in writing. Hence it was not necessary to specify that in the Act.

Ms Z Jongbloed (DA) said that her colleague, Ms Steyn (DA), had made a strong case about clause 3 in previous meetings that ‘may’ should be changed to ‘must’ when consent is given to the National Licensing Officer to visit premises where animals are kept, to assess the suitability of the premises.

The Chairperson stated that issues that had been debated and resolved should not be discussed again. There had been extensive discussion regarding the ‘may’ and the ‘must’, and ‘may’ was decided upon. The Committee should not forget that there was other legislation passed by the Committee and other portfolios, such as Justice, where such was already there in legislation. There were constitutional requirements that were guaranteed and could not be changed.

Mr Filtane said that the reason he brought the Committee’s attention to the specific provision in section 3O in favour of the licensing officer was that the appellant was not provisioned for. The Appeal Board chairperson was accorded specific authority, whereas the appellant was not catered for. He would be comfortable if they deleted (4)(a) but if it was going to stay, the Committee needed to specifically provide for the appellant.

The Chairperson said that the Appeal Board was the process after the matter had been finalised and the person was still not happy, and the Minister felt that it was beyond himself to decide. The person appointed to deal with the issue had to be given the responsibility. The complainant would have an opportunity to appear before the Licensing Officer and after the finalisation of that, if the applicant still was not satisfied, then it went to the Appeal Board. As this was dealt with, the responsibility had to be designated.

Mr Filtane pointed out that a Licensing Officer ‘may’ grant a licence. In other words, a person could have complied with everything in an application but that person still was not guaranteed approval of their licence. He was not reopening the debate but he wanted to stress the point that despite having complied with all requirements, for one reason or another, be it prejudice, the Licensing Officer could turn down the application. It said ‘may’, not ‘must’. When that person made an appeal, he was not given the specific authority to bring in his own witnesses, it depended on the Appeal Board. In section 3O(1) the Minister ‘may’ refer the matter to the Appeal Board. Here again, the Minister may agree with the Licensing Officer and not grant the application. When the Minister feels that the matter should be referred to the Appeal Board, the chairperson of the Appeal Board had authority to call in witnesses. The applicant did not have authority at all. The Chairperson could say that there was nothing needed in the Act. However, if the Committee was going to specifically allow for the chairperson to bring witnesses, he asked why this was not done equally for the applicant.

The Chairperson stated that the fact that it was an Appeal Board meant it was not part of the process. Only certain things needed to be specified. The citizen was covered by legislation on appeals and this Act. Even from the first day of the appeal, a citizen could bring witnesses. When it came to the Appeal Board, before they took a decision, they had to decide whether what the appellant and the Licensing Officer were explaining was part of the Constitution. So this clause was capacitating this person making the decision to advise the Minister.

The Committee was dealing with the legislation but they were not the implementers - that should not be forgotten. The Committee expected those with executing authority to implement legislation. Even in traditional institutions, if the case was taken to His Majesty, those bringing the case brought their witnesses to prove their story. The witnesses justified the process. It was the specification of the process itself.

Ms Ngema wanted to give a crucial distinction between section 3O(4) and (5). Subsection 5 was enabling the presentation of an appeal. Mr Filtane had started there to say that (5) was providing certain things to the applicant or complainant so why not add. Whereas (4) was an enabling provision to give functions to the chairperson and guide what that chairperson could do, specifically for the task given. Looking at (5), the necessity that resulted in this provision was, taking into account section 35 of the Constitution, legal representation was constitutionally given in criminal cases. There was a judgment given by the court to say that it was not a given legal representation would be given in administrative matters or other civil matters. This was why (5) was legislated, to stipulate that representation in such instances was open and could be had, and it was the appellant’s choice to go for representation. This was why the provision dealing with legal representation was dealt with and not all the other opportunities that the applicant may have.

The Chairperson pointed out that today was not meant for debate. It was meant for going over the clauses and making sure that no errors slipped through without the Committee seeing these.

Mr Filtane said he was happy with this explanation and he trusted the legal advisor.

Clause 4 Amendment of section 4 of Act 24 of 1935, as substituted by section 4 of Act 7 of 1991
“The following section is hereby substituted for section 4 of the principal Act:”
Mr Filtane suggested that the word ‘principal’ should start with a capital P because it was referring to a particular Act.

Ms Van Aswegen explained that the way an Act was drafted, ‘Act’ was usually in capital letters. It was just a technicality, but in drafting the ‘p’ was always in lower case and the ‘a’ of Act in upper case.

Clause 5 Amendments of section 5 of Act 24 of 1935
Ms Jongbloed stated that the Committee had discussed a fine, imprisonment or both, however she could not see ‘or both’ mentioned.
The Chairperson could not remember discussing the ‘or both’.

Mr Filtane said that the legal advisors were best equipped to give advice on this, because generally, the crime of obstructing a police officer would have a generally accepted level of punishment. One also had to factor in the consequences of obstruction and that was where the severity of the sentence came in, hence ‘either..or’ should be sufficient.

Mr C Maxegwana (ANC) said that there was a fine of R20 000, and if a person could not pay then they would be imprisoned. He thought it was well covered. He was not sure at what point the Committee could put in both. He could not see the point because there was a fine of R20 000 or imprisonment.

The Chairperson said that there was an additional penalty in the clause. Ms Jongbloed stated that it was not a fine of R20 000 but rather a fine of up to R20 000, so it could be a fine of R1000 as well. There was still the additional penalty.

Ms Van Aswegen read out the last part of section 5 as ‘liable on conviction to a fine not exceeding R20 000 or to imprisonment for a period not exceeding five years in addition to any other penalty imposed for the contravention of any provision of this Act or any regulation made thereunder.’

The Chairperson stated that everything was covered in the provision.

Clauses 6 to 11 were read through without comment.

Voting on the Bill
The Chairperson then went through the Bill clause by clause for the members to agree on them.

Clauses 1 to 3 were each agreed upon.

Mr N Paulsen (EFF) stated that he only joined the Committee when the Amendment Bill was in its advanced stages. He did not know if animal activists had come to speak on behalf of the animals. He said that some laws had to be repealed completely because they were inhumane.

The Chairperson stated that the Act had already been in place when the Constitutional Court declared sections 2 and 3 of the Act unconstitutional. It ruled that the issuing of performing animal licences is an administrative function that should be performed by the Executive and not by the Judiciary. The Court gave Parliament a deadline. The Amendment Bill was a constitutional imperative. To come up with a completely new Bill was a process, not something that could be done quickly.

Clauses 4 to 11 were each agreed upon.

The Committee adopted the motion that the Bill be put it to the National Assembly for approval. The Bill would go to the House on 24 November.

Mr Paulsen requested that the Committee noted the EFF’s objection.
The Chairperson noted the EFF’s objection.

Mr Mandela moved for the adoption of the Committee Report on the Bill. Ms Jongbloed seconded this.

Ms Ngema stated that the Committee was more than in time as they had until August 2016 to finalise the Bill.

National Agricultural Marketing Council (NAMC): nominations
The Chairperson said that the Committee had received a request for nominations of candidates to serve on the National Agricultural Marketing Council (NAMC). Committee members could submit nominations for consideration by the Committee. In terms of the Act, the Committee could nominate candidates on behalf of Parliament to the Minister. Members were requested to obtain relevant CVs and forward them to the Committee Secretary. The Minister had issued public adverts and the Committee would also forward nominations. As a Committee, they would look at all of them, screen them and appraise those that the Committee considered qualified to be sent to the Minister.

Mr Paulsen asked if the Committee was going to decide on one candidate as a collective or whether there were to be a number of them.

The Chairperson explained that the NAMC was constituted of 10 people and the entire Council had lapsed, Thus members could forward as many CVs as they could, as long as they were qualified. She asked members not to forward CVs of people who were not qualified because the Committee may not have time to read all the CVs. The requirements were found in section 4 of the Act. The Minister had given them until 30 April 2016 as the deadline. Initially, the Committee had received a letter from the Speaker that the deadline had passed. The Committee wrote back to the Minister who granted an extension. Thus, the first thing the Committee would do in the New Year would be to look at the CVs and forward them to the Minister.

Mr P Mabe (ANC) followed up on the question asked by Mr Paulsen, as to whether there was a specific number of candidates, and whether those chosen by the Committee had a standing of some kind as opposed to those nominated by the public. In order to reinforce a multiparty process it may have worked if there was understanding that there was going to be some consideration given to submissions made by the Committee. Committee members might come to the Committee with many CVs but not a single one might make it to the shortlist. Appointments of persons triggered emotions. Thus he wanted to know whether the Committee was allocated a certain number of candidates.

The Chairperson stated that the Committee did not have an allocated number. The Amendment Act stipulated that the nominations of the Committee were equal to the nominations of the public. The Minister could decide to take those from the Committee or the public.

Mr Paulsen said that it was important that any candidate chosen by the Committee meet all the criteria in the Act. The Committee should not put through names for the sake of putting through names. It did not matter who invited that applicant, they would still all go through the same process. Gender and race, and all the other matters would be dealt with by the Committee as well, but all applicants had to meet those criteria first.

The Chairperson agreed that it seemed to be a useless exercise that the Committee was going through, especially since their nominations had the same standing those of the public nominations. The Committee was representing the people and if they were not being considered as representing the people, but rather as individuals, it was a problem. There were many Acts that said that a Portfolio Committee was responsible for the nominations, and perhaps the Committee needed to look at an amendment so that the Committee was not just rubberstamping. The list may already be decided and the Committee was merely accompanying the process. For the Chairperson, it did not seem worth the Committee’s time. The Chairperson suggested that the Committee staff should bring the Acts that state that the Committee are responsible for the nominations. Either the nominations by the Committee were given better standing or they withdrew their participation all together.

Mr Maxegwana said that the Committee needed to look at the Act and amend it, so that at least the Committee as a collective was heard. The Minister also needed to take the Committee seriously. The Committee needed feedback so that the Committee was aware of what happened to the list and the appointments, in order to determine whether the names from the Committee were even considered. The Committee needed to be heard.

Ms Jongbloed asked how many people had to be appointed to the Council. The Chairperson said that it was the entire board which is ten people.

Mr Filtane said that the Committee should move toward abdicating their duty of nominating. Some people hear about positions through the Committee. Referring people gave the Committee the responsibility to talk to the people. The Committee should continue to embrace that. However, regarding the Act, if people that went through the Committee were given more weighting or the Committee was apportioned a certain number of appointments. Perhaps the Committee could be allocated three or four so the Committee could get results.

Mr Mabe said that it was important to take this aspect forward. As the Portfolio Committee on Agriculture there had to be something elite associated with that. People liaise with the Committee on certain things be it fiduciary or on their own responsibility. It should be mandated with the Ministry and the Department that where things were processed through the Committee, there was some way of giving feedback to them. Many people believed that politicians were liars, because in terms of process, Members went around and asked young people for their CVs, but not a single one of them get the job. The next time people consider him a liar because of that.

The Chairperson said that the Committee would look at the Act and discuss it in the New Year. The Committee would need to have a meeting before the Committee met with the Department, and by that time they would have agreed on how they wanted to approach it. The Committee collectively would request the Minister to consider it. The Committee would present its decision to the Minister in the meeting.

Mr Paulsen said that the Chairperson did not have any corrupt genes, but those that were pushing for favours for applicants coming through the Committee, those people were corrupt and could be bought. The Committee was not meant to be a favourable channel for Africans. There was a process to make sure that everyone was treated fairly. The Committee had to exercise oversight and not be a channel for Africans. The Committee should never favour any applicant –, that bred corruption.

The Chairperson clarified that it was the Act that determined that the Committee had to nominate and forward their nominations to the Minister. Next year, the Committee was going to have to look at that Act and see whether the Committee’s nominations were worth it. Was the Committee a conveyor belt or were they oversight? It may be that none of the applicants that the Committee put forward is chosen. The Act needed to be looked at to see whether the Committee was given the opportunity to conduct proper oversight.

Mr Mabe wanted to clarify that they had constituency offices that serviced communities. The communities visited the constituency offices to look for information. When the offices had information and people were needed, they did not take it to a rally, they took it to the constituencies to make it easier.

The Chairperson emphasised that all persons brought before the Committee had to be properly qualified. Even in the constituencies, the people should be given the Act to see if they qualify or not.

Committee business
The committee minutes of 13, 15, 16 and 27 October 2015 were adopted.

The Chairperson noted that the Committee was supposed to meet on 24 November but there was a plenary session set for that day at 10am. She suggested that they utilise the hour before from 9am, to invite the Minister and the Department to brief the Committee on the drought. The Committee approved this.